Positive Non Union Environments Keeping Employees Happy Community Employee Relations – Part 1 Michael Weiler, Presenting 2013 BCSLA Conference Whistler, BC on September 30, 2013

Agenda Opening Comments Two approaches to staying non union Certification under the Labour Relations Code (“Code”)—a Primer Tips To Avoid Unionization Conclusion — Mike’s Top 5 Reasons Unions Get Certified Q & A

First the good news… Last May 29, 2013 Christie Clark’s Liberals defeated the NDP in a stunning upset. “On election day, voters focus[ed] not on the past, but on who offers best hope for the future…” “…the province … is still looking for a vision for the future, focused on growth, prosperity and sounder management of provincial finances.” Vaughan Palmer, Vancouver Sun, on election of Christy Clark’s BC Liberals May 29, 2013 Now the bad news…

Why are these three gentlemen raising their arms in joyful glee of victory? “New union looks to grow membership in new non-traditional sectors.” Globe and Mail, August 31, 2013

UNIFOR CAW and the CEP merged to form Unifor, a union of over 300,000 members. Unifor is committed to not just maintaining its membership levels but in actively pursuing membership expansion. Unifor devotes 10% of its total revenue—that 10% amounts to $10 million—to organizing.

“A rising tide raises all boats…” The rippling effect of this consolidation will likely cause other unions in BC, especially the BCGEU and HEU, to step up their organizing efforts.

And the Liberal government signals mutual interests with unions. Sept : Working with BC Fed Labour President Jim Sinclair and BC Building Trades ED Tom Sigurdson – skills training.

Premier’s June 10, 2013 directive upon appointment of new Minister of Jobs, Tourism and Skills Training, and Minister responsible for Labour: “It will be essential that your Major Investments Office continues to assist global investors in taking their projects from an idea to completion. And our government has committed to working with our private sector union partners to ensure our labour code meets the needs of employees as well as those who want to invest in our province.”

Staying non-union? NOT everyone will WANT to stay non-union. Some employers find advantages to having a union. Some invite more ‘Employer-friendly’ unions such as CLAC to organize. Partially unionized operations can set benchmarks that benefit non-union segments of the operation.

Staying non-union? For others, the goal is to create a positive work environment that encourages employees to stay non-union, where there is no third party between you and your employees.

There are two basic approaches to staying non-union: #1 – THE STICK

Staying non-union #1 – THE STICK “So, does anyone else feel that their needs aren’t being met?”

Two approaches to staying non-union The second approach is to anticipate why your employees (or even a small group of your employees) might want to join a union and organize your workplace. Ask yourself, “If I worked for me, why would I join a union and why would I not join a union?”

#2—THE CARROT WITH A LITTLE BIT OF STICK… “This conversation’s going nowhere if you keep injecting the human factor.”

Two approaches to staying non-union If you can keep your employees glad to be working in your operation where they are properly rewarded for what they do; they truly feel like part of a team; they feel they are treated with respect while at the same time recognizing that you must make hard decisions then I think this approach not only keeps the union out but it maximizes the best asset you have…your workforce.

Certification under the Code—a Primer Education as Motivation…. Sometimes knowing how something bad might happen assists in organizing your workplace in such a way as to minimize the risk that it will happen.

Certification under the Code—a Primer Union first signs up 45% of employees in an appropriate bargaining unit (NOTE: not the most appropriate unit—see Island Medical Laboratories Ltd.) The union applies to the Labour Relations Board (“LRB”) to become certified as the exclusive bargaining agent. Most often you do not know about the sign up.

Certification under the Code—a Primer However some unions tell you up front they are organizing. Then certain restrictions apply and if you take action that is in any way tainted by anti-union animus, you might be subject to an Unfair Labour Practice complaint (“UFLP”).

Certification under the Code—a Primer The LRB will order a vote that must be scheduled within 10 days of the application for certification. An Investigating Officer (“IRO”) will conduct an investigation, usually by phone and fax asking you for payroll information. Then they prepare an IRO Report that is used by the LRB to decide if the application is in order and the vote should go ahead. It will note whether the Union has the requisite 45% support and will attach a “Tentative Voters List”.

Certification under the Code—a Primer The LRB hearing is usually within 7 days. The LRB asks 3 questions: 1) Is it a union? 2) Is it an appropriate bargaining unit applied for? And 3) Does the union have the requisite 45% support? And there may be any number of other questions…

Certification under the Code—a Primer In almost all cases a vote will be conducted (except if there is a really egregious UFLP in which case LRB may order automatic remedial certification). The vote then takes place and both the employer and union have scrutineers who can challenge ballots. Assuming there are no challenges, the vote is usually counted right there and then.

Certification under the Code—a Primer There is a “freeze” on terms and conditions of employment both before and for 4 months after the certification. If the Union is certified, the Employer has a duty to bargain in good faith under s. 11 of Code. Often an issue in bargaining about Union access to employee confidential contact information.

Certification under the Code—a Primer If no deal, then possible strike/lockout; or first time arbitration under section 55. Potential essential services issues. And so on, and so on, and so on…

Tips To Avoid Unionization 1. Geographic location –different vulnerabilities

Tips To Avoid Unionization 2. Vulnerability of your various departments— remember the Union only has to get 45% of the employees in “an” appropriate bargaining unit; not “the most” all employee bargaining unit.

Tips To Avoid Unionization 3. Hiring:

Tips To Avoid Unionization 3.Cont. Hiring: Reference checks What one may ask and what one should not Use of social media

Tips To Avoid Unionization 3. Cont. Hiring: Hiring handicapped persons - Government producing a White Paper. Most are loyal and become engaging for all employees; and you demonstrate that you are a responsible employer.

Tips To Avoid Unionization 3.Cont. Hiring: Despite skill shortages and pressures of our “just in time” society, be patient and get the right employee. Listen to that little fellow on your shoulder.

Tips To Avoid Unionization 3.Cont. Hiring: Have your well-drafted customized employment agreement on hand. Make sure it complies with the Employment Standards Act and is enforceable in all other respects. USE IT with every new hire. For example, this clause: “Convergys may terminate your employment for cause, or by providing you with notice, or pay in lieu of notice in accordance with the Employment Standards Act of British Columbia.” was challenged but UPHELD by the BCSC this year in Miller v Convergys GMG Canada LP.

Tips To Avoid Unionization 3. Cont. Hiring: Absolutely imperative to carefully monitor during the probation period. LPN’s now part of BCNU—where are RCA’s in your organization?

Tips To Avoid Unionization 4. Manage your employees. 5.Firing—do it when you have to and be seen as fair but firm; rely on your ironclad employment agreement (see Hiring above). 6.Functional integration—consider not only departments but other operations.

Tips To Avoid Unionization 7. Consider who you might want excluded from the bargaining unit. Ensure managers are truly managers and would be excluded under the Code; similarly set up exclusions for confidential positions and independent contractors. 8. Use of part timers 9. Youth

Tips To Avoid Unionization 10. Employees on “layoff” and other leaves of absences 11. Policy Manuals “Say what you mean and mean what you say.” 12. How are your working conditions and wages and benefits? Check out your competitors especially the union ones. 13. Make sure your employees know about the benefits and positive conditions that they already have.

Tips To Avoid Unionization 14.Develop strong communication links to your employees. Pay attention to the suggestion box. Be careful not only in what you say, but how you say it…

Tips To Avoid Unionization

15.Do you want some form of employee committee as conduit? Regular operational meetings. Good team building events. 16.Deal firmly with problems and problem employees. Make the tough decisions. But do it in a way that shows you are being fair but firm, respectful, and consistent.

Tips To Avoid Unionization 17. Follow the laws—failing to do so is a very good basis for unions to get their feet in the door. For example: non-compliance with Employment Standards Act failure to follow WCB—especially harassment and bullying policies coming into force November 1 st and the potential for section 151 WC Act complaints 18. Try to get designation as “Best Employer” or other similar accolades—allow employees to feel part of the team and successful.

Tips To Avoid Unionization 19. Set up a relationship with your legal advisors in advance. That is not just an ad but it is a reality. 20. Network—the BCSLA and these types of gatherings are perfect. Remember unions by their very size “network” and know what is going on—you should too.

Tips To Avoid Unionization 21. Manage change—everyone thinks the worst and we don’t like change—and your business especially will need to change to succeed. 22. “Be a leader, not a boss”.

My view: Top 5 reasons Unions get certified 1.Wages and/or benefits. 2.Job security, especially if a ‘new broom’ arrives. 3.Disgruntled employees being disciplined or fired, especially if spouse is in a union.

My view: Top 5 reasons Unions get certified 4. Poor managers – managers of businesses versus managers of people. 5. Environment and local culture-- eg Nanaimo versus Abbotsford.

My view: Top 5 reasons Unions get certified But if it turns out your employees or some of them unionize your workplace, don’t feel bad. Even really good employers encounter unions….

Thank you for coming! Michael Weiler Employment + Labour Law Mike Weiler*Carolyn Weiler, admin In association with: HUNGERFORD TOMYN LAWRENSON AND NICHOLS LAWYERS 1100 Cathedral Place, 925 West Georgia Street, Vancouver, BC V6C 3L2 Blog: * Legal services provided by separate and independent law corporations HTLN #